Education law expert: Language of charter schools amendment lesson in subversion

Attorney Thomas Cox represented Atlanta and DeKalb schools in the lawsuit that led to the abolition of the state-run charter schools commission.  That 2011 legal victory by school systems prompted the current campaign to change the Georgia Constitution so the state can recreate the commission and go back to approving charters over the objections of local boards of education.

A public school parent, Cox is a Harvard Law School grad who specializes in education law and policy. He is a co-founder of the Atlanta “Faithful Lawyers,” an inter-faith group that has co-sponsored continuing legal education seminars at Emory Law School, addressing issues of faith and the practice of law.

In this essay, Cox takes on the language in the charter schools amendment, which, like every other constitutional amendment on the ballot, is written to be as platitudinous as possible and provide as little detail as possible.

(That’s one reason why so many tax breaks get approved by voters in Georgia. The ballot questions are written in such congenial and broad terms that voting “No” seems the moral equivalent of pushing grandma down the stairs or running over your neighbor’s pug.)

But this amendment may go further than most in its lack of detail and honesty, according to Cox.

By Thomas A. Cox

The advocates, both in and outside the General Assembly, supporting the Charter School Constitutional Amendment have expressed confidence that Georgia citizens support the creation of a new politically appointed state-level body with the power to overrule decisions of locally elected school boards and create charter schools. It is unfortunate for Georgia voters (and the democratic process) that their confidence has not extended so far as to allow the actual issue to be placed fairly and honestly before the voters on the November ballot.

The ballot question states: “Shall the Constitution of Georgia be amended to allow state or local approval of public charter schools upon the request of local communities?” This question bears virtually no resemblance to the contents of the proposed constitutional amendment itself. For at least three reasons, the ballot question is both inaccurate and misleading:

First, local school boards already have, and regularly exercise, the constitutional authority to approve local charter schools, and there are now well over 100 such locally approved schools operating in the state. The only plausible reason to have inserted the words “local approval” in the ballot measure is to confuse some voters into believing that, without this amendment, charter schools cannot be locally approved.

Second, the ballot measure’s language stating that these new charter schools can be approved “upon the request of local communities” implies that, before the state can approve a new charter school, there must be a demand by a significant segment (perhaps even a majority) of the residents of a “local community.” A reasonable voter would probably conclude that a community consists of residents of a local school district, or at least persons living in the targeted school attendance area.

Yet the actual language of the Amendment would permit the new appointed commission to conclude, in effect, that a single individual may request a charter, and thus presumably constitutes a “local community.” For example, under the Amendment, an executive of a charter management company, or a real estate developer seeking to profit from approval of a school to cater to residents of his planned gated community, could seek and obtain charter approval, even in the face of overwhelming opposition from local residents, voters and the elected local school board.

Third, the ballot measure is deceptive because of what it omits. What will constitute “state approval” of a charter under the Amendment will not be the approval of any elected state officials, the voters of the state, or even the State Department of Education. Instead, it will be the approval of a politically appointed commission, answerable and accountable to no one (except, perhaps indirectly, to the politicians who appoint them).

Apparently concerned that even this ballot measure language drafted by the General Assembly might not alone lure sufficient numbers of uninformed voters into casting “Yes” votes, the Governor (acting along with the Lieutenant Governor and Speaker of the House, who make up the Constitutional Amendment Publication Board) chose to add even more deceptive “preamble” language, which states that the Amendment “[p]rovides for improving student achievement and parental involvement through more public charter school options.”

Under Georgia law, the only purpose of a preamble is to serve as “a short title or heading” that describes to voters “the substance of the proposal.” Yet nothing in the substance of the actual Amendment requires, or even mentions, either improved student achievement or parental involvement. By placing on the ballot a preamble that fails to serve its only legitimate statutory purpose, but instead recites positively charged buzzwords (who, after all, could vote against “improving student achievement” or “parental involvement”?), the Publication Board has failed the citizens of the state and has helped subvert what should be the most open and serious of processes — asking voters to decide whether to amend our state’s constitution.

It is certainly possible that a majority of Georgia voters agrees that the constitution should be amended to grant a group of unelected political appointees the authority to overturn or ignore decisions of locally elected school boards and to approve new charter schools. Because the Amendment drafters are unwilling to put this issue squarely and honestly before the voters, we are unlikely ever to know.

–From Maureen Downey, for the AJC Get Schooled blog

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[...] Education law expert: Language of charter schools amendment lesson in …Atlanta Journal Constitution (blog)Attorney Thomas Cox represented Atlanta and DeKalb schools in the lawsuit that led to the abolition of the state-run charter schools commission. That 2011 legal victory by school systems prompted the current campaign to change the Georgia Constitution …and more » [...]

jd

October 8th, 2012
5:52 am

So, how does the wording of the ballot question not pre-dispose support of the amendment? And, if you accept that the question can influence a voter’s choice, why is this allowed given the AG’s recent opinion?

It stinks in Denmark!

Tired of the Twists

October 8th, 2012
6:33 am

Our “conservatives” in the State are either idiots or lying hypocrits: in 2012 they pursued higher taxes for spending, and now bigger government control.

catlady

October 8th, 2012
6:56 am

Either the language has gotten worse, or I am more sensitive to it in the last 10 years. I am to the point now that I vote NO on all of it, figuring it is being put before the voters to reward someone rich and powerful (or more so than I am).

Have any of you ever gotten an opinion ballot from the RNC? They use every code word and inflamatory saying possible: Should President Obama, and the rest of his Socialist party, be allowed to strip any gun owner of his Constitutional right to bear arms anywhere he wishes, sending the US into chaos, anarchy, and h3ll? (I admit this is a paraphrase, and a bit of an exaggeration, but not much)

It is almost funny, if it were not so scary, to see how my neighbors froth at the mouth and use this “question” to”prove” that those things are happening!

S Fulton mom

October 8th, 2012
7:02 am

Maureen: Tell me again if you sent your own kids to a public school again? No, you did not. You didn’t have to suffer through absymal public schools like the other half does.

redweather

October 8th, 2012
7:04 am

This has been going on for years. Ask any lawyer you know about the
“tort reform” constitutional amendment that we voted on back in the late 1980s or early 1990s. It stated the exact opposite of what it meant. I haven’t voted for a constitutional amendment in 25 years and I don’t plan to do anything different now or in the future. This amendment represents Georgia politics at their worst.

An Observer

October 8th, 2012
7:05 am

Time to vote No on the charter amendment. Georgians know by now they should vote No on most of the ballot questions

Maureen Downey

October 8th, 2012
7:13 am

@S. Fulton. My kids attend public schools.
Maureen

crankee-yankee

October 8th, 2012
7:20 am

Ga politics at it’s “best!”
Vote NO next month.
I do hope there will be blanket media reports on the true meaning on the amendment.

Fred in DeKalb

October 8th, 2012
7:20 am

jd asks a question that should be explored further. Given that the language in the amendments is not clear and could cause confusion, could the state be liable if a citizen sues under the grounds the amendment is ambiguous? Would the AG defend that for the state?

LarryMajor

October 8th, 2012
7:25 am

Do you want to spit in the face of democracy by permanently giving your power to a commission that is appointed by a board whose member are themselves, appointed?

Yeah, I can see why amendment supporters would want to lie about it.

crankee-yankee

October 8th, 2012
7:27 am

I do wonder if therewill be legal recourse open to opponents based on the points Atty. Cox cites. The points he makes, coupled with the AG’s public & not so public rulings, sounds like a plan is being laid.

Burroughston Broch

October 8th, 2012
7:28 am

Maureen, this author has an economic interest on one side of this issue. He is hardly objective.
Next time, please get someone objective.

crankee-yankee

October 8th, 2012
7:32 am

Burroughston Broch
October 8th, 2012
7:28 am

And the authors & supporters of the amendment do not have an economic interest in it?
If you think that, you are a fool.

Becky Sayler

October 8th, 2012
7:40 am

I like the alternate wording Thomas Cox gives: Shall the Constitution of Georgia be amended to allow “a group of unelected political appointees the authority to overturn or ignore decisions of locally elected school boards and to approve new charter schools?” There is so much misinformation out there about this amendment, I hope people read this piece.

alpharetta mom

October 8th, 2012
7:48 am

Thank heavens there is still ONE attorney in Atlanta who is now not employed by some aspect of the charter school/privatization movement. Since when does being a Republican mean you are in favor of defunding traditional public schools? Since when do vouchers, which many legislators would really prefer to any of this mess they are proposing, represent the ultimate education reform -resegregating the country along religious and ethnic lines and letting the infrastructure we as taxpayers have spent billions on, go to ruin. We will deserve our reputation as the state of really bad reality shows if this thing passes – our legislators will be gloating as “the producers.”Thank you Mr. Cox for sticking your neck out.

indigo

October 8th, 2012
8:19 am

Will science teachers in all these new charter schools tell their students that The Big Bang Theory and Evolution are “lies from the pit of hell”?

KidsFirst

October 8th, 2012
8:28 am

If you vote ‘no’, bite your tongue the next time you become frustrated with the corrupt systems in our state and want to say, “I just wish we had another option. This school isn’t working for us”. Because that’s what you’re doing. Making sure GA doesn’t take even a baby step outside the status quo. Everyone helping the superintendents of the state protect their kingdoms, pardon me, their school districts. And to listen to this Haaavaaard guy say a commission would approve a management company with no family interest in the community. Ridiculous. Backwards.

Dr. Craig Spinks/ Georgians for Educational Excellence

October 8th, 2012
8:30 am

A Harvard Law grad can’t do any better than this.

Whirled Peas

October 8th, 2012
8:33 am

The education industry is large and powerful in Georgia. It wants monopoly access to the tax money we spend on our children’s education. They want only their snouts at the trough. I am about to pay my tax property tax bill. The majority is earmarked for education. What is at issue here is the right of taxpayers to have some control over which school will receive that money. I want that control to stay with me. Those in the education industry want the control over my money. It is that simple.

Mikey D.

October 8th, 2012
8:43 am

What?! You mean that our legislative leaders are proposing an ammendment that it vague and confusing?!? Can’t be! That would be dishonest, and we know that they wouldn’t do anything dishonest, right???

Concerned

October 8th, 2012
8:53 am

Sounds like the EPA to me. A group granted overwhelming power without an ability to reign them in. This is exactly why citizens distrust the government at the state and federal levels.

Jaynie

October 8th, 2012
9:14 am

I try to do as much research as possible on issues and candidates before I vote. Oftentimes, wording for amendments, “SPLOST”, and other ballot itmes is so vague and confusing, you canot make an informed decision if you don’t research before you go to the polls. I am definitely voting NO on this amendment. There are some failing public schools, no doubt. But this amendment will not help those failing schools and will only line some political appointee’s pocket in the end.

LoganvilleGuy

October 8th, 2012
9:16 am

@S Fulton Mom:

You don’t *have* to send your kids to public schools either. You have private schools, free virtual schools, and home schooling to name a few.

Tax dollars are meant to serve the whole community. They aren’t meant to provide your child a “special” choice. It is your responsibility to pay for that.

Lynn43

October 8th, 2012
9:46 am

Maureen, This needs to be on the front page of AJC.

NA Parent

October 8th, 2012
9:51 am

Well said, Maureen. I am horrified that this wording is allowed on the ballot. It is so intentionally misleading. This presidential election promises to have a high turnout, including many people who don’t follow local politics. I suspect the amendment will get passed due to well intentioned but uninformed voters.

Ron F.

October 8th, 2012
10:02 am

And we all know there will be those who read this “preamble” who haven’t studied the issue and will vote accordingly. They’re counting on the folks who don’t read the news much or research these questions. One has to hope that the news has gotten out enough on both sides to improve the chances of a reasonable vote on this.

crankee-yankee

October 8th, 2012
10:23 am

LoganvilleGuy
October 8th, 2012
9:16 am

I do not often agree with your positions but this is one that seems to cross the political divide, a true bi-partisan coalition can be forged here if enough people can see past their noses and join together to defeat this abomination.

Rockerbabe

October 8th, 2012
10:38 am

If a measure is backed by republicans, it must be anti-local control; VOTE NO!

lynnmang

October 8th, 2012
10:50 am

Thank you for posting this. Many of my friends and colleagues, some of whom are teachers, believe this is about whether one is for or against charter schools. Goes to show the biased, loaded language is working. Thanks for the other side!

Eddie Hall

October 8th, 2012
10:58 am

Any attempt to take votes AWAY from us and put decisions in the hands of a “commission” should be voted down on face value alone. We are giving our rights away a piece at a time. I will say this, we need reform for SOME school districts. The sad thing is, those districts continue to elect bad BOE’s, and wonder why nothing gets better.

KidsLast

October 8th, 2012
11:00 am

@KidsFirst If you think this amendment has anything to do with putting the children of this state first you are sadly mistaken. This is a about political power and money. If the politicians of this state cared about our children and schools they would not have gutted the education budget at every level over the last 5 years. They care about themselves and the money that they, their families and business associates will make off this amendment.

I live in one of the most conservative counties in the state (Columbia County). You cannot not find a self identifying liberal here. Our state legislators are all Republican our County commissioners are all Republican our Board of Education members are all Republican and I can tell you that they now (except for a few of the legislators who are in the pockets of the people who stand to make money off of this) are all opposed to it. You will not find many residents here who are for it.

Why?

Because we lose all control of our tax dollars. Let me repeat!! We lose all control of our tax dollars. How you say? Lets say the Board of Education decides based on population trends that we need to build a new High School (we just opened a new one) and starts construction of the new school. Six months before completion a private charter company decides that this would be a great location for a school in which they can make money. They go to the Board of Education and are turned down well all they have to do is pay off a few state charter school commission members and they have their money making machine right down the street from our new High School and the taxpayers of
Columbia County had no say in it what so ever. Before you start up with if your schools were better you would not need the charter school biz. We have great school here and are one of the fastest growing counties in the state. We also have one of the highest per capita incomes of any county in the state so we know that these money grubbing politicians and charter school companies are licking their chops looking at our county.

God help us that enough conservatives in this state see this amendment for what it is ( A power and money grab) and vote NO!!!!!!!

DeKalb Teacher

October 8th, 2012
11:03 am

@LoganvilleGuy,
YOU can choose between public schools, private schools, home schooling, etc … But many of us don’t have those options.

Are you saying we shouldn’t have magnet schools? Those are “special” schools.

catlady

October 8th, 2012
11:07 am

Ms. Downey, who is in charge of writing these things??

Inman Parker

October 8th, 2012
11:08 am

Well, you know, anyone can hire a lawyer.

scrappy

October 8th, 2012
11:12 am

KidsFirst – so you think that a board of commisoners appointed by politicans with no oversight and no way to ever be vetoed or be held accountable for their actions – are going to be LESS corupt than the current system?
You need to reexamine your assesment there…

HS Public Teacher

October 8th, 2012
11:24 am

Just vote “NO”.

Chicagojeff

October 8th, 2012
11:28 am

Ahh the irony is that the supporters of this amendment are funded substantially by the Walton sisters. You’d think. with the unbridled success of those arkansas schools.. THAT should be replicated. So..one party rule gets you what it gets you. If the local school systems and parents won’t do what we want.. the good ol boys in the gold dome will TELL you what you want. Meet the new boss.. same as the ol boss..

living in an outdated ed system

October 8th, 2012
12:11 pm

Distortion goes both ways, I’m afraid. The Democrats saw their tactic backfire during the primaries by changing the wording of the amendment to trigger a negative bias. Problem was that 44% of democrats did not buy it, and thus we have bi-partisan support for the amendment that is on the November ballot.

@Sandy Springs Parent

October 8th, 2012
12:46 pm

You have Bi-partisan support when the R’s geri-rigged the District’s to try to get a Republican Super Majority. Now some big name Republican Businessmen are now supporting Doug Stoner, because they know that a super majority is bad for business. I will be voting for Doug Stoner. So will many other’s he has been a bi-partisan Senator who worked with all.

BT

October 8th, 2012
12:47 pm

Smells like the TSPLOST format to me? Look what that did for the government. I agree with HS Public Teacher…vote NO!!!!

Just A Teacher

October 8th, 2012
12:57 pm

Vote No! Even the State Superintendent is against this! This type of trickery shows the Deal administration’s true colors!

Hillbilly D

October 8th, 2012
1:18 pm

Language of charter schools amendment lesson in subversion

I can’t remember an amendment to the Georgia Constitution that didn’t apply to. As always with any amendment, unless you’re 100% sure of what you are voting for and that you’re in agreement with it, vote No.

ATL SB

October 8th, 2012
1:26 pm

If you think running a school isn’t a business, you need to step into reality. I am pro-charter for personal reasons, my child struggled for 5 yrs in the public school with “minor” special needs. We are in a good school district, accolades, achievements, etc. For 5 yrs I advocated at the PS for my child what was needed to ensure he was learning with the other students. I was not a hard *** parent; I treated them with kindness and respect and very often was in tears asking for help in helping him. For those who say we should just stay and fix the existing schools; get over it. My child learned more in three subjects with a private tutor 2 hours a week over the summer than he did with the public school teachers he had; 3 YEARS IN A ROW. And I paid out of pocket for that. I also paid $1500 for testing to determine his learning disabilities after the school told me they couldn’t do it. I found out after the fact they are LEGALLY REQUIRED to do it. I was supposed to ask a second time with different wording to get this accomplished. Really?! Are you kidding me?! Who are you helping here; my son who is supposed to be entitled to the same educational experience, or the school’s bottom line? I wasn’t asking for the moon, just help in determining what he needed to succeed. This is merely one example. I am OVER it. I am not wasting another minute of his time and more importantly, his education over miles of red tape and a system that is so mired in it they can’t help themselves if they wanted to. He is flourishing where he is at; and yes; if I have to; I will put him in private school if the funding doesn’t continue for the charter. And you can also expect I will be on the bandwagon for vouchers at that point too. Because this IS a business; and the public school system has a monopoly. Options are all parents are asking for. I would prefer the voters for each county be allowed to make the choice themselves; not thru the BOE, but on its own ballot. The amendment currently being presented isn’t an ideal solution, but given what we ourselves have already been thru; I will take it. For those who say they aren’t against charter schools; just this particular amendment; I have yet to hear what your solution would be. What is the best way to serve ALL our students fairly that won’t take us another decade to achieve? Look only to the APS and how much money was spent on the testing scandal and even worse; paying the teachers who admitted cheating but hadn’t had their tribunal yet. Tell me how many legitimite teachers, programs, computers, etc were lost due to this. Then tell me again the PS can be saved… during my son’s educational career.

A simple man

October 8th, 2012
1:35 pm

Just want to say thanks…I was completely confused over this issue and I am glad someone took the time to strip away the fluff and make it more plain in its presentation so that I can make a more informed decision about this ballot. Which by the way will be NO because as they say absolute power corrupts absolutely and by the way just how does one get politically appointed to a committee. Sounds like a pretty sweet deal but I guess “A simple man” without connections or owed a favor by some political muckity muck doesn’t have a chance so why allow someone who has no vested interest in what’s best for me or my children to control what happens to one of the most aspects of their life …their education. Come to think of it why is there so much disconnect, in-fighting and back-biting on elected BOE’s which are comprised of individuals voted into position by the locals. You would think they would be looking out for the best interest of the children of those who put them in power. I guess I’ll have to look out for another article similar to this one, which will explain in simple terms why there is so much disarray in our school systems when there should be simple and singular focus which is what is best for the children and not what’s best for someone’s ego, pocket or whatever agenda they are pushing.

sneak peak into education

October 8th, 2012
1:37 pm

The article below is not directly linked to the subject matter of the misleading wording of the amendment but it discusses how charter schools gamed the system to make it look like their schools are performing at either the same level or better than their traditional counterparts; when compared school to school, the charters are failing. Just another way that the powers to be will use subversive tactics to try to fool the public. Disclaimer-this is Pennsylvania but please don’t think that this couldn’t happen in Georgia.

http://www.mcall.com/news/breaking/mc-pa-charter-tomalis-ayp-20121005,0,2267486,full.story

Shar

October 8th, 2012
2:25 pm

@KidsFirst – Your name gives you away. Yet another politically connected person who grabs the mantle of “for the children” to cover the greed and betrayal of those same children all in the name of profit.

Of course the legislators want to foist their buddies’ for-profit real estate, development, management, curriculum, food service, transportation and general procurement companies on a local public that doesn’t want them Why do you think that 96% of the money supporting this lying, thieving amendment comes from out of state corporations? The remaining 4% is primarily “voluntary” contributions from what is claimed to be “100% of Georgia’s charter schools”, money that Olens won’t allow anti-amendment public schools to spend but only under duress prohibited from charter, and therefore public, schools.

No one is voting against charter schools with this amendment, so your bitter comments about “the corrupt systems in our state” are plainly the sponsors’ talking points, all untrue. Local boards, local parent groups can and do petition for charter approvals, and if those are not forthcoming they can, and do, petition the EDUCATION PROFESSIONALS at the state DOE to override intransigent boards. As the letter mentions, there are over 100 charters operating in the state right now, all of which are locally promoted.

This amendment is the fruit of the repellant Chip Rogers, acting on behalf ALEC, the Koch brothers’ pet legislation machine whose avowed purpose is to bust public schools. He has pushed it ever since the legislation that he copied down, introduced and passed in the Legislature was overturned on Constitutional grounds by the state Supreme Court. He, Deal and all the other legislators with their hands firmly in the pockets of the Koches and the for-profit education industry will not brook resistance to their latest scheme to funnel public school money – currently reserved under the Constitution for local expenditures only – through their filthy hands to their cronies.

This wording is an outrage against the taxpayers and students of Georgia. Is there organized opposition to this ghastly amendment, and can the vote be challenged or nullified due to clear misrepresentation by Deal?

Shar

October 8th, 2012
2:41 pm

@ATL SB: I can understand your frustration, having had similar experiences with my learning disabled son. However, your frustrated pro-amendment vote merely guarantees that the tax dollars currently used to provide services to your son and others will be siphoned off to generate profits for grasping, corrupt “education management” companies that buy off our legislators to make the money that puts their own kids through private schools in other states.

Don’t be their dupe.

C Jae of EAV

October 8th, 2012
2:44 pm

To the esteemed Mr. Cox’s to supporting statement #1 I say that to have removed the “local approval” reference would potentially give the false representation that only State Approval of Charter institutions was being asked for, which be false representation of the intent of the admendment.

To Mr Cox’s supporting point #2, I disagree that voters by and large are confused regarding what is meant by the “upon request by local communities” reference. Under current law support by the local community is supposed to already be a significant consideration in contemplation of the merit of the charter application. Or did I miss something? This point reads like a red herring and an attempt at misdirection.

As to Mr Cox’s suppointing point #3, if the omission of what is meant by “State Approval” in his view is misleading that omission of the same with regard to “local approval” would hold equally as true IMHO. Again another red herring that distracts from the core concern that this admendment seeks to address.

In the final analysis, I believe Mr. Cox brought us nothing of substance to consider in our collective contemplation of this ballot measure. For all of his arguements, I note he indirectly offers rebuttal language to frame the ballot measure in a manner that does little to bolster the deficiencies he points to in his arguements. Instead it only parrots the ramblings of the constituancy he represents. Thus I can only conclude his purpose was not to better inform the voting public regarding the impact of the measure as it stands. Thanks for nothing Mr. Cox.

Lynn43

October 8th, 2012
2:46 pm

Just learned that charter parents are using their children to make phone calls on behalf of this amendment. These children are being prompted and have no idea what they are doing, and the parents should be ashamed.